Most of us conducting disciplinary or performance meetings nowadays work on the realistic assumption that the employee may well be recording the hearing. Whilst your grievance or disciplinary procedure may well set out an express ban on covert/non-consensual recording, that won’t necessarily mean that an employment tribunal won’t (in some circumstances) be prepared to consider the recording in evidence at a hearing.
When is a tribunal likely to do so? Helpfully, the answer is – at its discretion. In an increasing number of cases, that discretion appears to be exercised in the employee’s favour. Generally, tribunals tend to accept the admissibility of evidence, even if covertly obtained, if it is relevant to an issue between the parties. There is scope for the other party to object, for example if the evidence is/has been obtained in breach of the Human Rights Act, or should be excluded as a matter of public policy. So, for example, in Chairman and Governors of Amwell View School v Dogherty, UKEAT/0243/06, the EAT decided that whilst a covert recording of a disciplinary hearing could be admitted, the subsequent recording of the panel’s private deliberations could not. The distinction was based in large part on the EAT’s concern that admitting a recording of a panel’s private deliberations could mean that free discussion would be inhibited and evidence might go untested. The EAT did comment, though, that if the ‘private’ part of the recording had contained evidence relevant to a discrimination claim (for example, if it was the only evidence of the panel’s rationale for a decision alleged to be discriminatory) then the public policy point might have been decided differently. The courts are alert to the moral murkiness of the practice and in Vaughan v London Borough of Lewisham and Others, UKEAT/0534/12, the EAT recommended that where a party is seeking to rely on covertly obtained evidence, it should make a specific application to the tribunal seeking permission, together with a transcript of the material relied on and an indication of its relevance. Despite this, my experience is that many tribunals do tend to wave covert recordings through on the nod, with a weary acceptance of both their distastefulness and their apparent inevitability. Certainly, having a specific prohibition on recording in the contract/procedures is helpful in establishing the framework for the conduct of hearings and will be a factor taken into account by the tribunal – albeit it will not necessarily help in addressing the public policy aspects of any decision.
The most recent reported case on this point is Punjab National Bank (International) Ltd and others v Gosain, UKEAT/0003/14. Here, Ms Gosain had attended both a disciplinary and a grievance hearing prior to her resignation in January 2013. She subsequently brought a variety of claims, including sex discrimination. She had recorded both the internal hearings and also around 15 minutes’ worth of the panel’s private deliberations, including the manager hearing the grievance indicating that he was deliberately skipping her core grievances (primarily around her pregnancy). Both the employment judge at the preliminary hearing and the EAT on appeal held that all the recordings were admissible as evidence in the final hearing. The judge distinguished the Dogherty finding and indicated that it would be for the tribunal ultimately hearing the case to adjudicate on the cogency of the recordings and their relevance to the matters at issue.
Self-evidently, such decisions mean that we need to take still greater care in ensuring not only that the discussions at a hearing are above reproach, but also any other conversations taking place around the hearing itself, be they evidence of the panel’s deliberations or flip comments during a break in the hearing. Whilst there is some tension between the Dogherty and Gosain decisions, what is very clear is that tribunals will give serious consideration to admitting recordings of periperhal discussions in evidence, particularly in discrimination claims. Far better for there to be nothing contained therein from which inferences can be drawn. It remains sensible for disciplinary/grievance panels to consider keeping a confidential note of the rationale behind their decision making, not for immediate disclosure to the individuals, but as evidence should future allegations be made.